Muslim Law - Divorce & Custody of Infant boy.

Respected Lawyers, I present to you my current situation and seek advise to best protect my interest, rights and any harm that may come to me and family after filing for divorce.
I have been married for over 5 Year and have a son aged 2.25 years. 3 Months back I discovered my wife to be having an affair, I recorded her conversation and whatsapp history. She confessed to affair and promised it was nothing more than phone calls and promised she will never contact again.
I continued spying her phone and figured out she was trying to get updates about the guy from her other friends, so i dug deeper and found photos that confirm she had sex with a guy in a hotel room.
In an attempt to save this marrige I am going to try for a couple counsling, initial discussion with the psychologist has indicated she may be having personality issues.
Though I have softcorner for her but I cannot continue to leave with a liar and a cheater if she does not change.
My question is in an event of Divorce how can protect myself and family if they go for DV or Dowary and most important how can I get physical custoday of our kid
Thanks for your help, in advance.

Asked 1 year ago in Family Law from Hyderabad, Telangana

Religion: Muslim

1)divorce should be preceded by attempts at reconciliation
2) if reconciliation fails then you can divorce her as per msulim personal law
3) reasons should be mentioned for divorce and meher amount returned to wife
4) if wife files for dowry harassment obtain AB from sessions court
5) in order to protect your family from DV case stay separate with your wife .
6) if there is no shared household no DV case is maintainable against your parents
7) custody of child would be determined as per muslim personal law . welfare of child is paramount consideration

You cannot prevent your wife from filing false DV case or 498A case
2) obtain a letter from your wife wherein she admits her extra marital affair and that she shall not meet him again or have any contact on social media with that guy
3) she should also mention that there have been no demands of dowry made by you or your family before or after marriage
4) it will help you and family obtain AB in case false 498A case is filed
5) your query is silent as to age of your minor child
6) further it does not mention whether child is son or daughter
7) in seeking custody of child court would be guided by Muslim personal law

Since you are having sufficient proofs and evidence with regarding affairs of your wife you can get divorce on adultery ground among other grounds. The family counselling will be very effective and are chances of changing behavior and attitude of your wife. there are no precautionary measures for preventing DV and dowry cases. Generally the child will be in the custody of mother until the child's attainment of age of majority, however you will be entitled and permitted to visiting rights. No need to worry of panic about the DV and Domestic Violence cases you have to face the cases and you can easily disproved the same cases. You can avoid the prosecution or criminal cases by producing the evidence with regard to her illegal affairs with other guy before concerned police or you can seek for quashing the proceedings by approaching high court.

In case of divorce, she may retaliate with false cases agaisnt you under the provisions of dowry demand and harassment offences and she may also ile false domestic violence cases too.
In such a situation, you may obtain AB for you and other listed as accused in the FIR immediately after the FIR is being registered by police.
If the child is in your custody itself, you do not have to apply afresh for one, let she file a child custody case which can be challenged by you.

1. You can divorce her according to Shariah by pronouncing triple talaq on her through a registered qazi.
2. To get the custody of your child a petition for child custody has to be filed in the court. If you can prove her adultery then there is every likelihood that you may get the exclusve custody of the child as in child custody disputes the paramount consideration is the welfare of child.
3. If she files 498A then apply for and obtain anticipatory bail in the court.

Thanks for all your inputs:
- My main concern now is to gain child custody of my son (Male) 2.25 Years, in addition to the proof of adultery what measures/proof can I take/accumulate to ensure I gain custody of the child. I want to prepare for everything and then file for divorce.
- I also heard there is a provision to file a case against her lover under section 497 for committing adultery with a married women, does this apply even if it was consensual sex between adults? and what could be the possible outcome? Is it advisable to file such a case?

Asked 1 year ago

since your child is only 2 years old mother would be granted custody
2)As per Muslim personal laws, minor children are given to mothers. But after the age of seven years, the mother’s right over the son ends. Girls are given to mothers until they attain puberty.the conduct of the mother is of great importance, and if that is found ‘objectionable’, she may not be given custody rights. The father has the right to custody after the mother’s term ends.
3)rely upon audio recordings and whats app chat history wherein she admits of her affair to claim son custody
4) you can also file case against her lover under section 497 of IPC . only if her lover had sex with your wife with your consent would case under section 497 of IPC not be maintainable
5) section 497 applies to consensual sex between your wife and her lover
6) you should file such complaint against her lover under section 497 of IPC

For a complaint under the adultery offence, you can lodge a complaint with the jurisdictional police by providing substantial evidences for the same against the adulterer, please be aware that your spouse shall not be subjected to the criminal case for this offence.
For child custody, adulterous life itself is a great proof for seeking custody owing to immoral life of the mother which may affect the child's mental health and future well being, besides her weaker economic status.

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